A tricky situation: managing an employee’s return from maternity leave

Your receptionist is due to return from maternity leave in two months. She has asked to return on a part-time basis – working Monday, Tuesday and Wednesday each week. She previously worked full- time.

There have been a few changes at your practice since the receptionist commenced maternity leave which mean that you are no longer able to offer her either a full-time position or the days that she wants. If you are really honest, you don’t really want her back at all. Her performance wasn’t great and her sick leave was a problem before she went on leave.

A range of legal issues arise in this scenario. We explain these below.

Employer’s key obligations

Firstly, employers should be aware that all employees – both male and female – are entitled to take parental leave in accordance with the Fair Work Act 2009 (Cth).

Managing an employee’s return from maternity leave can be tricky. You should ensure that you understand your obligations as an employer and comply with all legislative requirements in order to avoid an employee bringing an employment claim against you or the practice. Some of the key obligations relevant in this scenario are:

  • Any employee engaged to replace an employee on parental leave must be engaged on a temporary basis and must be advised of the right of the employee on parental leave to return to the position.
  • An employee has a right to extend their parental leave to a maximum of 12 months by written notice to their employer.
  • An employee may request a further 12 months of parental leave in writing to their employer. The employer can only refuse the request on reasonable business grounds.
  • An employee is entitled to return to their pre-parental leave position or, if that position no longer exists, an available position for which the employee is qualified and suited, nearest in status and pay to the pre-parental leave position.
  • An employee with child care responsibilities can request a flexible working arrangement upon their return from parental leave. An employer can only refuse such a request on reasonable business grounds which include:
    1. the requested working arrangements would be too costly for the employer
    2. the employer cannot change the working arrangements of other employees to accommodate the requested working arrangements
    3. it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the requested working arrangements
    4. the requested working arrangements would be likely to result in a significant loss in efficiency or productivity
  • the requested working arrangements would be likely to have a significant negative impact on customer service.
  • It may be unlawful under state and federal discrimination legislation to unreasonably refuse a request for flexible working arrangements.
  • It may be unlawful under the Fair Work Act and under state and federal discrimination legislation to discriminate against an employee (for example, by refusing to re-employ an employee on parental leave) on the basis of the employee’s use of sick leave.
  • It may be unlawful under the Fair Work Act to refuse to re-employ an employee on the basis of performance concerns which have never been discussed with the employee.
  • An employer must handle requests from employees on parental leave in a reasonable way. If not, the employee may suffer stress and lodge a workers compensation claim.
  • An employer is entitled to make changes to their business which impact on employees on parental leave, provided they are legitimate business driven changes which are not designed to dismiss the employee on parental leave. The employer must consult with employees on parental leave about the changes in the same way as they are required to consult with employees who are at work. The employer must also pay any relevant redundancy entitlements if applicable.

Useful information

If you are unsure of your obligations in relation to an employee returning from parental leave, visit Avant's website for more information. If you or your practice requires immediate advice, call Avant's Medico-legal Advisory Service on 1800 128 268, 24/7 in emergencies.

Are you covered for employee disputes?

Avant’s Practice Medical Indemnity Insurance Policy* provides cover for defending complaints that arise from an employee dispute, including complaints under anti-discrimination or equal opportunity legislation. This includes the legal costs of defending the practice and its employees against allegations and complaints.

New Avant Business Insurance

If you hold a Practice Medical Indemnity Insurance Policy, you are also eligible to apply for Avant’s Business Insurance.# This flexible insurance allows you to select the right cover for your practice ­– meaning you only pay for the cover you need.

This cover protects the practice against loss or damage to the practice’s property, caused by unforeseen or unexpected events such as fire, storm, accidental or malicious damage. Avant Business Insurance also offers protection against other liabilities practices face, as well as cover against loss of revenue, income or profit.

This information is a brief summary only. Policy terms, conditions, limits, eligibility criteria and exclusions apply. For further details please refer to the Product Disclosure Statement and Policy Document.

*IMPORTANT: The Practice Medical Indemnity Policy is issued by Avant Insurance Limited, ABN 82 003 707 471, AFSL 238 765. This policy is available at avant.org.au or by contacting us on 1800 128 268. Practices need to consider other forms of insurance including directors’ and officers’ liability, public and products liability, property and business interruption insurance, and workers compensation.

# IMPORTANT: Avant Insurance Limited ABN 82 003 707 471, AFSL 238 765 arranges Avant Business Insurance as agent of the insurer Allianz Australia Insurance Limited ABN 15 000 122 850, AFSL 234 708. The information provided here is general advice only. You should consider the appropriateness of the advice having regard to your own objectives, financial situation and needs before deciding to purchase or continuing to hold a policy with us. For full details including the terms, conditions, and exclusions that apply, please read and consider the policy wording and PDS, which is available at avant.org.au or by contacting us on 1800 128 268.

By: Sonya Black, Special Counsel – Employment Law, QLD, Avant Law

This article was originally published on avant.org.au on Aug 14, 2017